Resolution ResDH(2005)28 concerning the judgment of the European Court of Human Rights of 5 December 2002 (final on 5 March 2003) in the case of Craxi No. 2 against Italy

(Adopted by the Committee of Ministers on 25 April 2005 at the 922nd meeting of the Ministers ' Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the P rotection of Human Rights and Fundamental Freedoms, as amended by P rotocol No. 11 (hereinafter referred to as “the Convention”),

Having regard to the judgment of the European Court of Human Rights in the case Craxi No. 2 delivered on 5 December 2002 and transmitted to the Committee of Ministers once it had become final under Articles 44 and 46 of the Convention;

Recalling that the case originated in an application (No. 34896/97) against Italy , lodged with the European Commission of Human Rights on 20 December 1996 under former Article 25 of the Co n vention by Mr Benedetto (better known as “Bettino”) Craxi , an Italian national, and that the Court, seised of the case under Article 5, paragraph 2, of P rotocol No. 11, declared admissible the complaints concerning the unfairness of the criminal proceedings which had resulted in the applicant ' s conviction in 1994 (“Eni-Sai proceedings”) to five years ' and six month ' s imprisonment; recalling in this connection that the complaints related in particular to the fact that the conviction was based exclusively on pre-trial statements made by

co-accused persons whom the applicant was not allowed to cross-examine and that the applicant had furthermore complained that he had not had adequate time and facilities to prepare his defence and that a press campaign conducted against him had influenced the judges determining the charges against him;

Recalling that the applicant died in the course of the proceedings and that his widow, Mrs Anna Maria Moncini Craxi, and his children, Ms Stefania Craxi and Mr Vittorio Craxi, have expressed the wish to continue the proceedings;

Whereas in its judgment of 5 December 2002 the Court unanimously:

- held that there had been a violation of Article 6, paragraphs 1 and 3 d) of the Convention in that it had been impossible to examine or have examined prosecution witnesses who had died or had exercised their right to remain silent;

- held that there had been no violation of Article 6, paragraphs 1 and 3 b) of the Convention on account of the rapid succession of hearings in the various sets of proceedings against the applicant;

- held that there had been no violation of Article 6 of the Convention on account of the press campaign against the applicant;

- held that the finding of a violation constituted in itself sufficient just satisfaction for all pecuniary and non-pecuniary damage suffered by the applicant;

- dismissed the applicant ' s claim for just satisfa c tion;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention;

Having invited the government of the respondent state to inform it of the mea s ures which had been taken in consequence of the judgment of 5 December 2002 , having regard to Italy ' s obligation under Article 46, paragraph 1, of the Conve n tion to abide by it;

Whereas during the examination of the case by the Committee of Ministers, the government of the respondent state gave the Committee information about the measures taken preventing new violations of the same kind as that found in the present judgment; this information appears in the appendix to this resolution;

Declares, after having examined the information supplied by the Government of Italy , that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case.

Appendix to Resolution ResDH(2005)28

Information provided by the Government of Italy during the examination of the Craxi case

by the Committee of Ministers

As regards the individual measures , the government recalls that the applicant died in January 2000, without serving the sentence resulting from the proceedings at issue.

As regards the general measures , the government recalls that, subsequent to the violation in this case, important measures have been adopted by Italy with a view to ensuring the fairness of criminal proceedings in accordance with Article 6 of the Convention.

Constitutional reform of 1999

Article 111 of the Italian Constitution, as modified in November 1999, gave Constitutional rank to a number of requirements contained in Article 6 of the Convention and, in its new wording, it provides in particular that:

“1. Jurisdiction shall be exercised through fair proceedings, conducted in accordance with the law.

2. All proceedings shall be conducted in compliance with the principles of adversarial process and equality of arms before a neutral and impartial court. The right to be tried within a reasonable time shall be guaranteed by law.

3. In criminal proceedings, the law shall guarantee that the person accused of an offence is informed promptly and in confidence of the nature and grounds of the charge against him; that he shall have adequate time and facilities for the preparation of his defence; that he shall be given an opportunity before the court to examine or to have examined anyone giving evidence against him, to obtain the attendance and examination of any defence witnesses on the same conditions as witnesses called by the prosecution and to obtain the production of any other evidence in his favour; and that he will have the assistance of an interpreter if he cannot understand or speak the language used at the trial.

4. The principle of adversarial process shall be observed during criminal proceedings with regard to the examination of evidence. The guilt of an accused cannot be established on the basis of statements made by a person who has freely and wilfully eluded examination by the accused or his lawyer.

5. Rules shall be made governing the circumstances in which adversarial examination of the evidence is to be dispensed with, either because the accused has consented or because there is due evidence that such examination is objectively impossible or that there has been unlawful conduct.”

Legislative reform of 2001

A law implementing the new constitutional provision was adopted by P arliament in 2001 (Law No. 63 of 1/03/2001 ), which amended inter alia Article 513 of the Code of Criminal P rocedure, application of which was at the basis of the violation found in this case .

According to the law now in force, pre-trial statements made by a person who subsequently avails himself of his right to remain silent in the debate, may be read and used by the judge only if all the interested parties consent to it unless the judge establishes that the refusal to be cross-questioned in the proceedings is the result of bribery or threats.

This rule applies not only to statements made in the same proceedings but also to those made in other proceedings and, in this last case, the statements may not even be read without the consent of the accused person concerned.

However, if it proves impossible to secure the presence of the person who made the statements or to examine him or her in accordance with the adversarial principle, where that impossibility is the result of events or circumstances that were unforeseeable when the statements at issue were made, Article 512 of the Code of Criminal P rocedure applies. This provision reads as follows: “ At the request of one of the parties, the judge shall order to be read in court documents resulting from enquiries by the police, by the representative of the prosecuting authorities, by the private parties ' representatives or by the judge in connection with the preliminary hearing, where, on account of unforeseeable events or circumstances, those enquiries can no longer be repeated.”

As a result of these measures, it is no longer possible that a person is convicted exclusively on the basis of statements that he/she could not examine or have examined.

Retroactive effect of the measures

In the case of statements made during preliminary investigations by witnesses who deliberately avoided being examined by the defendant or his or her counsel, which were already included in the case-file before Law No. 63/2001 came into force, transitional provisions provide that:

- if they were added to the case-file before 25 February 2000 , they may be used only if they are borne out by other evidence obtained by other means;

- if they were obtained after 25 February 2000, Article 526 of the Code of Criminal P rocedure, as amended by Law No. 63/2001, applies; that article provides that the defendant ' s guilt cannot be established on the strength of statements made by persons who deliberately avoided being examined by the defendant or his or her counsel.

Regarding statements already included in the case-file and used to determine whether the charges are founded, in proceedings before the Court of Cassation the rules on assessment of evidence in force at the time of the decisions on the merits should be applied.

Strengthened role of the Convention and of the Court ' s case-law in Italy

The European Court of Human Rights ' judgment has been translated into Italian, forwarded to the Appeal Court of Milan for dissemination to the district judicial authorities and published in several Italian legal reviews [see Cassazione Penale , vol. XLIII, mars 2003, p. 1080 ; Diritto penale e processo , n o 3/2003, p. 381].

Italy ' s obligations pursuant to the Convention have accordingly been brought to the attention of all the authorities concerned and the entire legal community. The government has strong hopes that dissemination of the judgment will enable the Italian courts to give full effect to the European Court ' s case-law when applying the above-mentioned new constitutional and legislative provisions. The direct effect of the Court ' s judgments in Italian law was recently confirmed by the Court of Cassation, which held that " the European Court of Human Rights ' interpretation of the provisions of the European Convention on Human Rights is binding on the Italian courts " (joint divisions, judgment of 26 January 2004 (No. 1339)); this position was upheld in judgments delivered on 10 June 2004 (Nos. 15393/04 and 15400/04). The government welcomes these advances in the case-law and encourages this trend in order to give full effect to the Strasbourg Court ' s judgments in Italian law.

Conclusion

The government considers that the measures adopted prevent new violations similar to that found in this case and, accordingly, that Italy has fulfilled its obligations under Article 46, paragraph 1, of the Convention in this case.